wrong tax form - I-485 could be rejected?

kim750

Registered Users (C)
My NIW was approved in 4 months in VSC.

When I was on F1, I filed 1040 instead of 1040NR for 4 years by mistake.
One of these was submitted along with a correct one (last year) for I-485.

I am wondering if this mistake can be a reason for rejecting I-485.


*****
Thank you for the advice. I will ask my lawyer when she comes back to work.

Meanwhile, I will add more info.

1. My hubby filed for NIW. I am his dependent. My lawyer said I also have to submit my tax files.

2. When I was on F1, since I used I040, I did not use tax treaty (first 2000$ is exempt from tax). So I don't think I paid less than 1040NR. Anyway, these tax files were not included in I-485. Do I still have to look back and correct?

3. On the one I included in I-485, I claimed "higher education cost" (I went to school on OPT and paid tuition) on 1040. Would it be a problem?

Thank you so much!
 
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kim750 said:
My NIW was approved in 4 months in VSC.

When I was on F1, I filed 1040 instead of 1040NR for 4 years by mistake.
One of these was submitted along with a correct one (last year) for I-485.

I am wondering if this mistake can be a reason for rejecting I-485.

You should talk to your lawyer. Maybe you can file 1040X to correct your returns from the past. Or maybe you don't need to. I would imagine that its a good faith mistake and if you file 1040X to correct it, you should have no problems (atleast you filed your taxes). Let us know what your lawyer says.
 
kim750 said:
My NIW was approved in 4 months in VSC.

When I was on F1, I filed 1040 instead of 1040NR for 4 years by mistake.
One of these was submitted along with a correct one (last year) for I-485.

I am wondering if this mistake can be a reason for rejecting I-485.

Lifted this from a forum with a similar kind of question as yours:

First, no, he cannot continue to file the 1040; he should be filing the
1040NR or the 1040NR-EZ, whichever is applicable. He should also redo his
returns for the last three years and file amended 1040NR's or amended
1040NR-EZ's, whichever is applicable.

As a student on an "F" visa, he is a nonresident alien individual and is
only taxable on his income that is effectively connected with a U.S. trade
or business (which includes being an employee for these purposes), his
scholarships, if any, and any other U.S.-source income (like income from
U.S. investments).

If his only taxable income is wages from working in the U.S. and/or
scholarships, the results should not be dramatically different with the
1040NR than they were on the 1040; however, if he has significant amounts
of investment income from U.S. sources (which is subject to a flat 30%
gross receipts tax unless it qualifies for a reduced treaty rate), then he
may have a significantly higher tax liability.

If there won't be much difference between the tax owed on the 1040NR from
the 1040, then it is in your friend's best interest to complete the
1040NR's and file them. You might contact an IRS representative to see if
the 1040NRs should be filed as amended returns, and whether or not you
need to revoke the original 1040s by filing a 1040-X or not.

If there is a big difference in the tax due (e.g., because your friend had
significant income from U.S. investments), then it is all the more
imperative that he file the correct returns and pay the additional tax -
in that case he will owe interest and penalties on the tax he forgot to
pay, but it's better to get it over with sooner rather than later. Even
though the IRS hasn't contacted him yet, they will eventually, and filing
the wrong form in this instance may mean that there is no statute of
limitations on assessing a deficiency since the required return (i.e., the
1040NR) was never filed.


So, you need to first get in touch with your immigration lawyer and find out if you need to amend your returns. If he concurs, you than need to find a IRS agent/attorney/etc. who can help you amend/correct your past returns. Eventually if you get an RFE/NOID for your 485, you can than send in your amended returns if so requested. If no RFE, than you can rest easy. But I would imagine that you will need to correct your past returns (whether USCIS wants it or not).
 
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I don't think I-485 petition needs your tax form

I filed I-140 and 485 concurrently. I don't remember there are requirement to attach tax forms. Were you required to do so?
 
TAx-I-485

yeah I agree!
I feel we add tax form only create impression that we are good tac paying people.
Do we really need tax forms?
Also if we attach wrong one ....RFE shd be first step and chance to ammend shd be provided?
Are there any cases where 1-485was rejected due to tax related issues???
 
Lifted this from a forum with a similar kind of question as yours:

First, no, he cannot continue to file the 1040; he should be filing the
1040NR or the 1040NR-EZ, whichever is applicable. He should also redo his
returns for the last three years and file amended 1040NR's or amended
1040NR-EZ's, whichever is applicable.

As a student on an "F" visa, he is a nonresident alien individual and is
only taxable on his income that is effectively connected with a U.S. trade
or business (which includes being an employee for these purposes), his
scholarships, if any, and any other U.S.-source income (like income from
U.S. investments).

If his only taxable income is wages from working in the U.S. and/or
scholarships, the results should not be dramatically different with the
1040NR than they were on the 1040; however, if he has significant amounts
of investment income from U.S. sources (which is subject to a flat 30%
gross receipts tax unless it qualifies for a reduced treaty rate), then he
may have a significantly higher tax liability.

If there won't be much difference between the tax owed on the 1040NR from
the 1040, then it is in your friend's best interest to complete the
1040NR's and file them. You might contact an IRS representative to see if
the 1040NRs should be filed as amended returns, and whether or not you
need to revoke the original 1040s by filing a 1040-X or not.

If there is a big difference in the tax due (e.g., because your friend had
significant income from U.S. investments), then it is all the more
imperative that he file the correct returns and pay the additional tax -
in that case he will owe interest and penalties on the tax he forgot to
pay, but it's better to get it over with sooner rather than later. Even
though the IRS hasn't contacted him yet, they will eventually, and filing
the wrong form in this instance may mean that there is no statute of
limitations on assessing a deficiency since the required return (i.e., the
1040NR) was never filed.


So, you need to first get in touch with your immigration lawyer and find out if you need to amend your returns. If he concurs, you than need to find a IRS agent/attorney/etc. who can help you amend/correct your past returns. Eventually if you get an RFE/NOID for your 485, you can than send in your amended returns if so requested. If no RFE, than you can rest easy. But I would imagine that you will need to correct your past returns (whether USCIS wants it or not).
File Form 1040-X for each of last 3 years along with Form 1040 NR or Form 1040NR-EZ for the each of the last 3 years. Explanation required on Form 1040-X as erroneously filed Form 1040 inlieu of Form 1040 NR or Form 1040 NR-EZ due to lack of adequate training and experience in US Tax Laws. Keep copies of everything.
 
File Form 1040-X for each of last 3 years along with Form 1040 NR or Form 1040NR-EZ for the each of the last 3 years. Explanation required on Form 1040-X as erroneously filed Form 1040 inlieu of Form 1040 NR or Form 1040 NR-EZ due to lack of adequate training and experience in US Tax Laws. Keep copies of everything.

This thread is over 13 years old for crying out aloud!:rolleyes:
 
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